United States v. Demetrius Jones , 111 F.3d 597 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2656
___________
United States of America, *
*
Appellee, *
*
v. *
*
Demetrius Jones, *
*
Appellant. *
___________
Appeals from the United States
No. 96-2660 District Court for the
___________ Eastern District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
*
William Yancey Jones, *
*
Appellant. *
___________
No. 96-2661
___________
United States of America, *
*
Appellee, *
*
v. *
*
Kevin Pleas, *
*
Appellant. *
___________
No. 96-2827
___________
United States of America, *
*
Appellee, *
*
v. *
*
Demetrius Mack, *
*
Appellant. *
___________
No. 96-2927
___________
United States of America, *
*
Appellee, *
*
v. *
*
Sherdonna Jones, *
*
Appellant. *
___________
No. 96-2929
___________
United States of America, *
*
Appellee, *
*
v. *
*
Tonya Jones, *
*
Appellant. *
-2-
___________
No. 96-3478
___________
United States of America, *
*
Appellee, *
*
v. *
*
Lamar Howell, *
*
Appellant. *
___________
Submitted: February 11, 1997
Filed: April 16, 1997
___________
Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE,1 District
Judge.
___________
WOLLMAN, Circuit Judge.
This consolidated appeal stems from convictions related to a
large-scale drug conspiracy in St. Louis, Missouri. William Yancey Jones
(William Jones), Kevin Pleas, Demetrius Mack, and Lamar Howell each pled
guilty in the district court2 to conspiring to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) & 846. Demetrius Jones, William
Jones’s son, was not considered part of the conspiracy but pled guilty to
three counts of distributing
1
The HONORABLE ANDREW W. BOGUE, United States District Judge
for the District of South Dakota, sitting by designation.
2
The Honorable George F. Gunn, United States District Judge
for the Eastern District of Missouri.
-3-
cocaine base, in violation of 21 U.S.C. § 841(a)(1). Tonya and Sherdonna
Jones, William Jones’s daughters, each pled guilty to money laundering
under 18 U.S.C. § 1956(a)(1)(A)(i) & (2). Each defendant also executed a
consent decree of forfeiture. William Jones, Demetrius Jones, Pleas, Mack,
and Howell (the appellants) argue that their convictions constituted double
jeopardy in light of previous civil forfeiture proceedings against them.
Demetrius Jones also challenges his sentence. Tonya and Sherdonna Jones
appeal from the district court’s denial of their motion to withdraw their
pleas and their resultant sentences. We affirm.
I.
Appellants3 contend that their convictions constituted double
jeopardy in light of earlier civil forfeiture proceedings instituted
against them that were stayed pending their criminal prosecutions. The
Supreme Court recently held in United States v. Ursery, 116 S. Ct. 2135(1996), that civil forfeiture proceedings are not, absent extraordinary
circumstances, punitive, and do not raise double jeopardy concerns.
See id. at 2148. Only “where the ‘clearest proof’ indicates that an in rem
civil forfeiture is ‘so punitive either in purpose or effect’ as to be
equivalent to a criminal proceeding, [might] that forfeiture . . . be
subject to the Double Jeopardy Clause.” Id. at n.3 (quoting United States
v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984)).
3
Although represented in this appeal by counsel, William
Jones moved to file a pro se brief and supplemental appendix.
Although we ordinarily do not accept pro se briefs from
defendants represented by counsel, see United States v. Blum, 65
F.3d 1436, 1443 n.2 (8th Cir. 1995), cert. denied, 116 S. Ct. 824(1996), we have considered Jones’s brief and appendix.
-4-
In support of their argument that the civil proceedings were
punitive, appellants contend that the government instituted civil
forfeiture proceedings as preparation for eventual criminal forfeitures.
Appellants allege that the stay of the civil forfeiture proceedings which
the government obtained in light of the criminal proceedings shows that the
civil forfeiture proceedings were in fact an integral part of the criminal
proceedings and were therefore punitive.
This argument defeats itself on two fronts. First, the fact of the
stay undermines rather than supports the double jeopardy challenge, for a
stay of forfeiture proceedings prevents the attachment of jeopardy. See
United States v. Sykes, 73 F.3d 772, 774 (8th Cir.), cert. denied, 116 S.
Ct. 2503 (1996); United States v. Clementi, 70 F.3d 997, 1000 (8th Cir.
1995). Second, appellants’ argument that the civil forfeiture proceedings
were related to the criminal proceedings defeats their double jeopardy
claims. A single coordinated prosecution involving both civil forfeiture
proceedings and criminal proceedings does not violate the double jeopardy
clause, as the civil and criminal proceedings in such a situation are
“merely different aspects of a single prosecution.” United States v.
Smith, 75 F.3d 382, 386 (8th Cir. 1996); see United States v. Volanty, 79
F.3d 86, 89 (8th Cir. 1996). In this case, the temporal link and the
coordination between the civil forfeiture proceedings and the indictments
satisfy us that the actions were different aspects of the same prosecution
and that the civil forfeiture proceedings were not separate and punitive.
See Smith, 75 F.3d at 386. Because both the stay and the coordination
between the civil forfeiture proceedings and criminal prosecutions
prevented jeopardy from attaching as a result of the civil forfeiture
proceedings, the subsequent criminal proceedings would not, even before
Ursery, have constituted double jeopardy.
-5-
III.
Demetrius Jones asserts that the district court erred in calculating
his sentence based on crack rather than another form of cocaine base that
would not merit the increased sentence for crack. See United States v.
Jackson, 64 F.3d 1213, 1219 (8th Cir. 1995) (“[C]rack . . . [is] the only
form of cocaine base to which the stiffer penalties formulated by the
Sentencing Guidelines apply.”), cert. denied, 116 S. Ct. 966 (1996). When
the type of drugs attributable to a defendant is at issue, the government
bears the burden of proving the type of drugs by a preponderance of the
evidence. See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir.
1996), cert. denied, 117 S. Ct. 1258 (1997); United States v. Johnson, 12
F.3d 760, 765 (8th Cir. 1993). We review for clear error a district
court’s determination of the type of drugs attributable to a defendant and
will reverse only if we are firmly convinced that a mistake has been made.
See id.; United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir. 1994).
Demetrius Jones claims that the laboratory reports do not
specifically describe the substance attributable to him as the crack form
of cocaine base, but simply as cocaine base. A laboratory report regarding
drugs purchased from Demetrius Jones on December 9, 1994, however,
specifically describes the drugs as “‘crack’ cocaine,” and a “rock-like
substance.”
Furthermore, Demetrius Jones failed to challenge the government’s
assertion that the substance he distributed was crack until several weeks
before his sentencing hearing, even though the substance was repeatedly
described during his plea hearing as crack. To the contrary, he repeatedly
acquiesced in and
-6-
affirmatively responded to the court’s meticulous questions at the plea
hearing describing the substance as crack:
The Court: All right. As I understand, you’re here to
plead guilty to three counts of distribution
of crack cocaine; is that correct?
Mr. D. Jones: Yes, sir.
. . . .
The Court: All right. Have you been furnished a charge
-- a copy of the charge against you here, the
count -- charges of three counts of
distribution of cocaine, crack cocaine?
Mr. D. Jones: Yes.
. . . .
The Court: [Defense counsel has] explained to you that
the three charges are three separate counts of
distribution of crack cocaine?
Mr. D. Jones: Yes, sir.
. . . .
The Court: All right. You also -- you also understand
that . . . the three counts of distribution of
crack cocaine are being brought against you by
the United States Attorney by way of an
information? Do you understand that?
Mr. D. Jones: Yes, sir.
. . . .
The Court: All right. . . . You’ve received a copy of the
charges against you and the information
against you here charging you with three
counts of distribution of crack cocaine; is
that so?
-7-
Mr. D. Jones: Yes, sir.
. . . .
The Court: All right. How do you plead to the charges of
three separate charges in Count 1, Count 2 and
Count 3 . . . each count charging you with
distribution of crack cocaine?
Mr. D. Jones: Guilty, sir.
. . . .
The Court: You understand that the offenses to which you
are pleading guilty, the three counts of
distribution of crack cocaine, are felony
offenses . . . do you understand that?
Mr. D. Jones: Yes.
. . . .
The Court: The charges against you are three counts,
Counts 1, 2 and 3 of the information which--
each charges you with distribution of crack
cocaine. I’m going to have [the U.S.
Attorney] outline what the government’s
evidence would against you and then ask you
whether you agree that you did what he says
you did. All right?
Mr. D. Jones: All right.
[U.S. Atty]: Your honor, if this matter were to proceed to
trial, the government would be prepared to
prove beyond a reasonable doubt that . . .
Demetrius Jones knowingly and intentionally
distributed cocaine and cocaine base,
otherwise known as crack cocaine. . . .
The Court: Mr. Jones, do you agree that you did what [the
U.S. Attorney] says you did?
Mr. D. Jones: Yes, Your Honor.
. . . .
-8-
The Court: How do you plead to the information on Counts
1, 2 and 3 of distribution of crack cocaine?
Mr. D. Jones: Guilty.
The Court: On all counts?
Mr. D. Jones: Plead guilty.
The Court: On each of the counts?
Mr. D. Jones: Yes.
[Emphasis added.]
Moreover, the stipulation of facts relative to sentencing, which
Demetrius Jones signed, refers to the substance Jones distributed as
“cocaine base (crack cocaine).” We are satisfied that the lab report and
Demetrius Jones’s admissions during the plea colloquy and in the
stipulation of facts provided an adequate basis for the district court’s
finding that the substance distributed was crack cocaine. See United
States v. Koonce, 884 F.2d 349, 352-53 (8th Cir. 1989).
IV.
Tonya and Sherdonna Jones first challenge the district court’s
refusal to allow them to withdraw their guilty pleas. “A guilty plea is
a solemn act not to be set aside lightly.” United States v. Prior, 107
F.3d 654, 657 (8th Cir. 1997). A defendant must establish a “fair and just
reason” before the district court may permit the defendant to withdraw his
plea. See id.; United States v. Stuttley, 103 F.3d 684, 686 (8th Cir.
1996), pet. for cert. filed, (U.S. Mar. 21, 1997) (No. 96-8312); Fed. R.
Crim. Proc. 32(e). We review a district court’s denial of a motion to
withdraw
-9-
a guilty plea for an abuse of discretion. See United States v. Capito, 992
F.2d 218, 219 (8th Cir. 1993).
Tonya and Sherdonna allege that the factual basis is insufficient to
support their pleas to charges of money laundering under 18 U.S.C. § 1956and that they are innocent of the conduct proscribed by that section. They
contend that the plea hearing transcripts, the stipulation of facts
relative to sentencing, and the presentence investigation reports fail to
establish that they “inten[ded] to promote the carrying on of a specified
unlawful activity,” an element of section 1956. They assert that they
should have been allowed to plead guilty to money laundering under 18
U.S.C. § 1957, which, they claim, more accurately describes their conduct.
This contention is without merit. Both Tonya and Sherdonna stated
that they had received a copy of the information (which fully and
accurately stated the elements of section 1956 money laundering) before the
plea hearing and had reviewed it with their attorneys. They both admitted
in their signed stipulation of facts to having had “the intent to promote
the carrying on of the conspiracy.” Given their admissions of guilt to all
of the elements in the charge and in their stipulation of facts, their
post-plea claims of factual insufficiency and innocence are unavailing.
See United States v. Wicker, 80 F.3d 263, 267 (8th Cir. 1996) (defendant’s
admissions at plea hearing provided “abundant evidence” in support of
guilty plea); United States v. Peebles, 80 F.3d 278, 279 (8th Cir. 1996)
(per curiam) (defendant’s claims of innocence are unavailing given
admissions to the contrary in plea agreement, stipulation, and at change-
of-plea hearing); see also Stuttley, 103 F.3d at 686 (“post-plea regrets”
are not a fair and just reason to warrant withdrawal of guilty plea).
-10-
Tonya and Sherdonna also argue that they should have been allowed to
withdraw their pleas because their pleas were not voluntary. They contend
that they believed that if they did not plead guilty, William Jones, Pleas
(Tonya’s boyfriend), or Mack (Sherdonna’s husband) would not be permitted
to do so and that this all-or-nothing condition was not disclosed to the
district court.
This contention is without merit. The record demonstrates that the
plea hearings complied fully with the requirements of Federal Rule of
Criminal Procedure 11. When asked if they had been coerced or forced into
pleading, both Tonya and Sherdonna answered in the negative. Where the
district court fully informs a defendant of the rights he is waiving, and
the defendant’s statements at the plea hearing show that he “knowingly and
voluntarily pleaded guilty, ‘the occasion for setting aside a guilty plea
should seldom arise.’” Peebles, 80 F.3d at 279 (quoting United States v.
Newson, 46 F.3d 730, 732 (8th Cir. 1995)). Neither Tonya nor Sherdonna
made mention of any condition during their plea hearing, and they do not
now offer any evidence corroborating their allegations of a secret coercive
condition. In light of these circumstances, the district court did not
abuse its discretion in denying the motion to withdraw the guilty pleas.
Tonya and Sherdonna finally argue that the district court incorrectly
applied the Sentencing Guidelines in determining their sentences. Both
waived their right to appeal their convictions and sentences, however, so
long as the sentences imposed were less than forty-six months. A review
of the record satisfies us that this waiver was made voluntarily. Because
the sentences imposed (thirty-seven months) were in accordance with the
agreement, Tonya and Sherdonna are precluded from challenging the bargains
they made. See Stuttley, 103 F.3d at 686.
-11-
The judgments and sentences are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-12-